Johnson v. Herseth

• Decision Date: 29 September 1976
• Docket Number: No. 12053,12053
• Citation: 246 N.W.2d 102
• Parties: Warren JOHNSON, Petitioner and Respondent, and Donald P. Mackintosh, Party Petitioner and Respondent, v. Lorna HERSETH, Secretary of State of the State of South Dakota, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 102

246 N.W.2d 102

Warren JOHNSON, Petitioner and Respondent and Donald P. Mackintosh, Party Petitioner and Respondent, v. Lorna HERSETH, Secretary of State of the State of South Dakota, Defendant and Appellant.

No. 12053.

Supreme Court of South Dakota.

Sept. 29, 1976.

William J. Janklow, Atty. Gen., R. Van Johnson, Asst. Atty. Gen., Pierre, for defendant and appellant.

Joaquin K. Hanson, Hanson & Hanson, Sioux Falls, Frank J. Brady, Brady, Kabeiseman & Reade, Yankton, for petitioner and respondent.

PER CURIAM.

Petitioners sought and were granted a writ of mandamus requiring appellant, secretary of state, to certify the name of petitioner Warren Johnson as a candidate for the state senate on the November general election ballot for Minnehaha County. The secretary of state appealed and this court has expedited this appeal as it is a matter of great public concern.

We reverse.

The trial court incorporated within the findings of fact and conclusions of law, by reference, the court's memorandum decision which contains the following essential facts, to wit:

'That Ronald L. W. Larsen was a successful candidate in obtaining the Republican nomination for the State Senate from Minnehaha County in the primary election in June, 1976;

That Warren Johnson, one of the petitioners herein, was defeated in the primary election;

That petitioner Mackintosh is a resident and elector of Minnehaha County and a registered member of the Republican party;

That on or about August 3, 1976, Mr. Larsen withdrew his name from nomination;

That on August 12, 1976, the Minnehaha County Republican Central Committee met, according to law, and selected petitioner Johnson to fill the vacancy on the ballot created by Larsen's withdrawal;

That on August 13, 1976, Mr. George Robertson, the county chairman for the Republican Party in Minnehaha County prepared a letter to the Secretary of State, in proper form and content, and placed it in an envelope addressed to the Secretary of State, with the necessary amount of postage, into a delivery box of the U.S. Postal Service in Sioux Falls;

That the last day for filing such notice to the Secretary of State was August 30, 1976, but to this date has not been received (through the postal service) by the Secretary of State;

That on August 16 or 17, 1976 the Secontary of State had actual knowledge through the news media of the action of the Minnehaha County Central Committee in selecting Johnson as a successor to Larsen;

That the Secretary of State discussed the nomination of Johnson with members of her staff and requested advice from the Attorney General as to whether a defeated primary candidate was qualified to be so nominated; that she was advised by the Attorney General's office that such was proper;

That on August 31, 1976, petitioner Johnson was advised by the news media that his name would not be placed on the ballot due to the fact that his name was not certified to by a filing in the Secretary of State's office;

That on September 7, 1976, Johnson's attorney filed a copy of Mr. Robertson's letter with the Secretary of State;

That the Secretary of State still refused to certify the name of Warren Johnson to the Minnehaha County Auditor for placement on the ballot.'

Further, in the trial court's memorandum opinion it is stated that:

'SDCL 12--8--6 in substance requires that nominations by party committees to fill vacancies occurring in nominations made in primary elections are to be filed with the Secretary of State not less than 65 days prior to the election. This year this means that the same were to be filed on or before August 30. It is undisputed that the letter submitted by Mr. Robertson, as chairman of the Minnehaha County Republican Party, was in proper form and sufficient to satisfy that statute. There is no dispute that Mr. Robertson did in fact place it in a U.S. Postal service mail box some 17 days in advance of the time provided for filing. Also, there is no dispute but that the Secretary of State never received such letter, even to this day, through the mail service. The question, then, is what is the legal significance of this presumably 'postal' dilemma.'

On these uncontested facts the trial court entered the following conclusions of law:

'CONCLUSIONS OF LAW

1. That the petitioner, Warren Johnson, has complied with all the legal requirements

of the election laws of the State of South Dakota with the exception of the timely receipt by the respondent of the petitioner's certificate of nomination.

2. That the statutory provision for filing a certificate of nomination with the Secretary of State by the nominating officials to fill a vacancy before a general election is directory rather than mandatory.

3. That it would be inequitable to deny the issuance of a writ of mandamus to require the respondent to certify petitioner's name for placement on the ballot.

4. That the petitioner, Warren Johnson, is entitled to a writ of mandamus requiring the Secretary of State of the State of South Dakota, to certify petitioner's name for placement on the ballot, as Republican Party Candidate for State Senate from Minnehaha County in the general election to be held November 2, 1976.'

As we perceive the issues, as they were presented to this court on appeal, they are: (1) whether the statutory provisions involved are mandatory or directory, and (2) what constitutes filing within the meaning of SDCL 12--8--6.

Conceding the factual situation to be true, we hold that the trial court erred in its conclusions of law numbers 2 and 3 which lead to an improper conclusion of law in number 4. The trial court's holding, 'That the statutory provision (SDCL 12--8--6) for filing a certificate of nomination with the Secretary of State by the nominating officials to fill a vacancy before a general election is Directory rather than Mandatory' (emphasis added), overlooks other parts of the election law which lead to a contrary result.

The basic statutes which are controlling in this case are SDCL 12--6--56 and 12--8--6, which read as follows:

'12--6--56. If a vacancy occurs by reason of death or withdrawal after a primary election, a party candidate for public office may be replaced by a new nominee if a meeting of the appropriate party central committee can be held and the results certified to the appropriate official within the times prescribed by § 12--6--8. Such a vacancy, if a candidate for presidential elector, United States senator, or state office, shall be filled by the state party central committee; by the party state central committeemen of the district, in case of vacancy in nomination for representative in Congress or district office; by the county central committees of the joint legislative district, in case of a vacancy in party nominee of a joint legislative district; and by the party county central committee of the county in which a vacancy occurs in party nominee for county and legislative offices.' (emphasis added)

'12--8--6. Nominations by party committee to fill vacancies occurring in nominations theretofore made in primary elections and certificates of nomination to be filed with the secretary of state shall be filed not less than sixty-five days before the day fixed by law for the election of the persons nominated; those to be filed with the county auditor shall be filed not less than sixty days before the day fixed for such election.' (emphasis added)

The provisions of SDCL 12--6--56 and 12--8--6, ¹ together with SDCL 12--16--1, are geared to comply with the absentee voting law, SDCL 12--19, ² and particularly to accommodate the Federal Absentee Voting Assistance Act, 50 U.S.C. § 1452(12) to 'provide that absentee ballots will be available for mailing to the applicant as soon as practicable before the last date on which such ballot will be counted.' To that end the legislature has enacted SDCL 12--16--1, as last amended by S.L.1974, Ch. 118, § 69, which reads as follows:

'12--16--1. It shall be the duty of the county auditor to provide printed ballots for every election in which the voters of the entire county participate. Printed ballots for a primary election shall contain the name of every candidate who has filed for nomination and is approved. Such printed ballots for the election of officers shall contain the name of every candidate whose nomination has been certified or filed with the county auditor in the manner provided by law unless they are deemed elected as having no opposition. Sample ballots must be printed on paper of a different color from the official ballot but in the same form. Such sample ballots and Official ballots shall be printed and in the possession of the county auditor not later than twenty days preceding a primary for Primary elections and not less than fifty days prior to the general for general elections. The county auditor shall also prepare the necessary ballots whenever any question is required to be submitted to the electors of the county. Ballots for general elections shall be of the style and form prescribed in §§ 12--16--2 to 12--16--11, inclusive.' (emphasis added)

SDCL 12--6--56, 12--8--6 and 12--16--1, when construed together, are plain and unambiguous. This court has in the past found no ambiguity in similar statutes which dealt with the same subject. This court construed §§ 7107 and 7185 of the Revised Code of 1919, which provided for a party caucus type nomination and not for the primary election as we now know it, and found no such ambiguity. State ex rel. Picton v. Doolittle, 1926, 50 S.D. 298, 209 N.W. 851. Although §§ 7107 and 7185 of the Revised Code of 1919 find no counter- part in current law, those sections of the law dealt with the necessity of setting deadlines to be met for the purpose of getting ballots printed and to the voters, as do the controlling statutes in this case. This court, in Burtch v. Medin, 1926, 50 S.D. 343, 210 N.W. 187, construing RC 1919, § 7122, together with the then provisions of §§ 7188, 7206 ...